Payne v. V.A. Hospital et al

Filing 102

ORDER ADOPTING REPORT AND RECOMMENDATIONS: The R & R (Docket No. 96 ) is hereby ACCEPTED and APPROVED, and Plaintiff's Objections thereto (Docket Nos. 99 & 100 ) are OVERRULED; The Motions to Dismiss (Docket Nos. 49 , 67 & 85 ) are hereby GRANTED; Signed by Chief Judge Kevin H. Sharp on 10/16/15. (xc:Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION
DAVID R. PAYNE,
Plaintiff,
v.
V.A. HOSPITAL–NASHVILLE, et al.,
Defendants.

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2:14-00073
Judge Sharp

ORDER
Magistrate Judge Brown has entered a Report and Recommendation (“R & R”) (Docket No.
96) in which he recommends that the pending Motions to Dismiss in this action be granted, and that
a final judgment be entered. More specifically, he recommends that (1) the Motion to Dismiss filed
by Defendant Cumberland County Sheriff’s Department (Docket No. 49) be granted with prejudice
because the Sheriff’s Department is not a proper party under 42 U.S.C. § 1983 and, to the extent
Plaintiff intended to name the county as a Defendant, there are no allegations in the Complaint about
a policy or custom that led to the deprivation of Plaintiff’s constitutional right; (2) the Motion to
Dismiss filed by Congressman Diane Black (Docket No. 85) also be granted with prejudice for
failure to state a claim; and (3) the Motion to Dismiss filed by Defendant United States (Docket No.
67) be granted without prejudice for failure to exhaust administrative remedies as required by the
Federal Tort Claims Act (“FTCA”).
The Court has conducted a de novo review of the record as required by Rule 72(b) of the
Federal Rules of Civil Procedure, finds that the recommended dispositions are correct under the law,
and will accept the R & R. In doing so, the Court has considered the “Objections” and “Statement”

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filed in support thereof (Docket Nos. 99 & 100) filed by pro se Plaintiff.
In his Objections, Plaintiff first begins by stating that “on August 4, 2014, [he] did pursue
as Plaintiff civil actions against the [Defendants].” (Id. at 1). Assuming Plaintiff is not referencing
this case which was filed on August 1, 2014, but is claiming that he filed some sort of administrative
claim three days later, he has not complied with the administrative exhaustion requirements of the
FTCA. The “straightforward statutory command” of the FTCA is that “an ‘action shall not be
instituted . . . unless the claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency in writing and sent by certified
or registered mail[.]’” McNeil v. United States, 508 U.S. 106, 111 (1993) (emphasis added)
(quoting 28 U.S.C. § 2675(a)). Plaintiff’s assertion that he “did call the U.S. District Attorney and
did have third party conversation with the V.A. counsil [sic]” (id. at 3) simply does not meet the
exhaustion requirements of the FTCA.
Plaintiff next argues that the “Motion to Substitution as [sic] the United States of America
over a citizen of the U.S.A. was and is not acceptable” and “[t]his case c[an] not move forward
based on this disagreement, nor be dismissed in such a manner[.]” (Docket No. 100 at 1-2).
Actually, this case could not have moved forward with the “V.A. Hospital” as a Defendant because
“the VA, as an executive department, is considered a ‘federal agency’” and “[f]ederal agencies are
not proper parties under the FTCA[.]” Brooks, ex rel. Jesse W. Brooks Estate v. U.S. VA Admin.,
2014 WL 8276902, at *1 (M.D. Tenn. Dec. 4, 2014). “Instead, a claim . . . must be brought against
the United States.” Id.; see also, Himes v. United States, 645 F.3d 771, 776 (6th Cir. 2011) (“The
FTCA is the exclusive remedy for suits against the United States or its agencies sounding in tort”).
Relatedly, Plaintiff argues that “sovereign immunity does not apply due to lack of capacity

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under Title 38 ‘Entitlement to Power[.]’” (Id. at 3). Whatever is meant by the reference to Title 38,
the fact remains that “[t]he government has waived its sovereign immunity to suits for tort actions
under the FTCA, but only insofar as the plaintiff has exhausted his administrative remedies,”
Blakely v. United States, 276 F.3d 853, 864 (6th Cir. 2002), which Plaintiff has not done.
As for Cumberland County, Plaintiff asserts that “[t]he Sheriff’s Department and the VA
Security (Hospital) did encroach on [his] property without warrent [sic], FBI escort, or viable
investigation under the Title 38 ‘Entitlement to Power.’” Even if true, this does not suggest, let alone
establish, that sheriff’s deputies acted in accordance with the custom or policy of the department.
See Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 607 (6th Cir. 2007) (sating
that a county “cannot be held liable for the constitutional torts of its employees . . . on a respondeat
superior theory,” but, instead, “liability will attach only where the plaintiff establishes that the
[county] engaged in a ‘policy or custom’ that was the ‘moving force’ behind the deprivation of the
plaintiffs’ rights.”).
Finally, Plaintiff contends that the “people” sent to the VA hospital “were sent by
Congressman Black via Mrs. Bonney Warren,” and “Congressman Black is responceable [sic] for
the actions of Mrs. Warren.” (Id. at 2 & 4). Regardless, Magistrate Judge Brown properly
concluded that “the complaint is devoid of any factual elements to support any cognizable claim
against Congressman Black, nor can any factual allegations be liberally construed from the
complaint or subsequent filings.” (Docket No. 96 at 8-9).
Accordingly, the Court rules as follows:
(1) The R & R (Docket No. 96) is hereby ACCEPTED and APPROVED, and Plaintiff’s
Objections thereto (Docket Nos. 99 & 100) are OVERRULED;

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(2) The Motions to Dismiss (Docket Nos. 49, 67 & 85) are hereby GRANTED; and
(3) The Clerk of the Court shall enter a final judgment pursuant to Rule 58 of the Federal
Rules of Civil Procedure in favor of Defendants and against Plaintiff.
It is SO ORDERED.

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KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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